The only defect alleged in the demandant’s title is the fact that Hayden, the executor of Willard, assigned to Cummings the mortgage under which the demandant claims, and that he had no authority to make such assignment. Ex parte Blair, 13 Met. 126, is cited in support of this position. That case decided that an administrator had no authority to sell a mortgage belonging to the estate, without license from the probate court. But the decision was made in 1847; and by St. 1849, c. 47, the law was changed, and authority was given to sell a mortgage not foreclosed, without such license. This mortgage was assigned in 1856, and had not then been foreclosed. It is objected that the sale was conditional. But the mortgage and the note secured by it were held as collateral security for the payment of another note; and the condition of the sale was merely that they should be cancelled upon the payment of that other note. It was not an assignment in mortgage by the executor, to secure any debt due from him; but the object of the condition was to secure by express stipulation the rights of the mortgagor. The court think it was within the scope of his authority to make such an assignment.
Judgment for the demandant.